*1 PLASTERERS EMPLOYING STATES UNITED CHICAGO OF al. et ASSOCIATION 8, 1954. March February 1954. Decided Argued No. the United for cause argued Weston H. Charles Acting Solicitor were brief him on With States. Barnes General Attorney Stern, Assistant General Frankel. E. Marvin Employ- for the cause argued Thomas M.

Thomas With appellee. Chicago, Association Plasterers ing him on the brief was Perry Howard Ellis. Patterson entered an appearance.

Daniel D. Carmell argued the cause and filed a brief for the Journeymen Plasterers’ Protective and Benevo- lent Society, 5, Local No. et al., appellees.

Mb. Justice Black delivered the opinion of the Court. The United brought States this civil in action a Federal District Court charging the (appellees here) defendants with having 1 violated of the § Sherman Act which for bids combinations conspiracies or in restraint of inter state trade or commerce.* Holding that the complaint failed to state a cause of action on which relief could be granted under the Act, the District Court dismissed. The case is before us on appeal, direct 15 S. C. 29,§ U. and the only question we must decide is whether District Court’s dismissal was error. We hold it was.

In summary the complaint Government’s alleges: (1)

Defendants are Chicago trade association of plastering contractors; (2) a local labor union of plasterers and their apprentices; (3) the union’s president. These contractors and union members employed by them do approximately of the 60% plastering contracting business in the Chicago area of Illinois. in Materials used the plastering, such as gypsum, lath, cement, lime, etc., are furnished by contractors. Substantial quantities of this material are produced in other states, bought by Illinois build- 209, *26 Stat. 693, amended Stat. 15 U. S. C. so far § as here relevant reads: “Every contract, combination in otherwise, the form of or trust or conspiracy, among restraint of trade or commerce the several States, foreign nations, with illegal is declared to be . . . .” The complaint charged here also a violation of 2 Act, of the Sherman § but the pressed Government has not that claim here. Cf. Standard States, Oil Co. v. United 337 U. Illinois, some- into shipped dealers materials

ing place business directly going times for use sites job directly sometimes dealers arrangements contractors plastering con- is a of all this effect practical the dealers. plastering flow of uninterrupted and almost tinuous sites job Illinois origins from out-of-state Restraint contractors. by plastering there for use area Chicago in the work plastering disruption plaster- flow this necessarily affects thus de- Chicago adversely. Since ing materials competi- suppress in concert acted have fendants prevent contractors, plastering among tion business doing any contractors out-of-state *3 local con- of new entry to bar and Chicago area examining private aby approval without tractors has this of all The effect the union. up board set of restraint unreasonable and an unlawful been used in materials of commerce in interstate flow industry. Chicago plastering foregoing that the question not did Court District The a combination allegations showed factual other and contrac- plastering Chicago among competition restrain to be allegations these considered the court But tors. not monopoly,” restraint of local charge a “wholly that held court And the Act. Sherman by the reached these showed fact which of allegation nowas there effect adverse sufficiently had a local restraints powerful At this Illinois. into materials plastering flow of on the charged several plainly complaint disagree. we point towas restraints all these of effect times that the^ be charges these Whether commerce. interstate restrain “mere conclusions fact” “allegations called account taken into be must they we hold pleader,” to have entitled is the Government deciding whether in tried. its case that the impressed by argument are not Sher

We inter apply man Act not here because the possibly could plastering materials buying, selling and movement had ended before the local restraints became effective. ends and local commerce interstate Where not decisive begins always easy is not decide in Sherman Act cases. See Mandeville Island Farms v. Co., Crystal Sugar American 232. How continuously may be, complaint ever this large to a extent group people since 1938 a local were buy plaster able dictate who could and who could not through that had to reach Illinois ing materials if trade reached there at all. such circum they Under could goes say it too far to Government stances enough to show that these possibly produce not evidence on the free local restraints caused unreasonable burdens into Illinois. uninterrupted plastering flow of produce the That local business restraints can wholly open longer Act is no condemned the Sherman effects Sports g., e. United v. Women’s question. See, States Assn., wear U. Manufacturers and too long too complaint may be The Government’s looking to sim- practice the modern detailed view of not It does brevity pleading. plicity and reasonable to show every includes essential charge too little. It fide a bona And where of the Sherman Act. violation *4 necessary element charges every filed that complaint failure a case for dismissal of civil recover, summary to If a justified. facts can seldom be to set out evidential for them right it to call facts, more has party needs of Procedure. (e) of the Federal Rules Civil under Rule full expensive an a claim is frivolous And time summary the by invoking be avoided dress trial can under Rule 56. judgment procedure com- to dismiss the Government’s hold it was error We to a cause of action. plaint for failure union of the contention separate the leaves This the Sher for violation prosecution immune it is This con Act. Clayton of the 20§of Act because man the com allegations the no merit has tention union and true, if show, they because here plaint contractors business with have combined president its v. Bradley Co. Allen them. among competition suppress 3, 325 U. S. No. Union Local

Reversed. Doug Mr. Justice Minton, whom with Justice Mr. dissenting.* joins, las are and true, there as pleadings accepting

That, question. open is not restrain conspiracies were and applies, Act the Sherman is whether question re- are to conspiracies whether upon depends activi- opinion, my In commerce. interstate strain and intrastate, wholly of are complained here ties in- is so any, if commerce, interstate upon restraint effect without to be inconsequential and remote direct, conspire purpose intent to an foreign wholly commerce. interstate to restrain commerce. no interference There is reach the and lath plaster when the ends That commerce sup- to material first they come whether building site, on and afterwards their warehouses at rest in pliers most job, as on the contractors to the order delivered are delivered handled, to be are the transactions building and aof The construction job. directly purely are lath plaster therein incorporation local transactions. fact and the building commerce;

“Nor is states from other shipped are to be used Employing No. States opinion applies also to United *[This al., post, p. Assn. et 198.] Lathers

191 part does not make of such interstate Assn., Shipowners Anderson v. 272 commerce.” 364. 359, S.U. does not and could Government not contend that

building is commerce. It contends that appellees’ commerce, acts affect relying upon such cases as Labor Council, Building Board v. Denver 341 675, Co., Walling Paper v. Jacksonville 317 U. S. 564. But those cases arose under different statutes, sweep 1 which is broader than that of of the Sherman Act, § illegal which declares those only contracts, combinations “in conspiracies restraint of trade or commerce among the several States.” The Denver Council case arose the Labor Management which Act, Relations provides: (a)

“Sec. empowered, The Board is as here- inafter provided, prevent any person from engag- in ing 8) unfair labor in practice (listed section affecting commerce. . . .” 61 146, Stat. U. S. C. 160 (a). §

Section 2 of that Act defines “affecting commerce” follows:

“(7) The term ‘affecting commerce’ means com merce, or burdening obstructing or commerce or the commerce, free flow of or having tending led or dispute lead to a labor burdening obstructing com merce the free flow of commerce.” 61 Stat. (7). §152 29 U.S.C.

The Jacksonville Paper case arose under the Fair Labor Act, applicable Standards which is “employees who engaged in production goods commerce or [are] for . . . .” 52 Stat. S. C. 206. § U. Furthermore, that case dealt with transactions that took place in the Compare Higgins stream of commerce. *6 cases, the instant the In S. Co., 317 U. Bros. Carr building site. the at stops commerce of stream complaints in these allegations the factual as Insofar with charged essentially are appellees the concerned, are lathing business and plastering the divide to conspiring num- the limiting themselves, among area Chicago the or contractors become may who persons of and classes ber the among competition reducing and members union over control union of means contractors, primarily as contrac- either in the business engage may who those appellees of acts The members. union as or tors to local related all are thus of complained here con- in such engage to permitted those construction inter- establish not do allegations struction. or beginning its commerce, at flow ference done is anything 'flow, or of its course or in end ma- which toor whence place influence the com- sure, beTo price. their go, or or terials come the effect statements bald contain plaints com- interstate restraint are conspiracies add allegations these conclusional However, merce. facts to set forth failure conceal not and do nothing interstate on restraint substantial or any direct showing so. What to do intent purpose aor a restraint constitute may in these cases charged affect indirectly remotely may jurisdiction consistently been has But commerce. Apex Act. the Sherman be no violation held Levering & 495; Leader, 310 U. Hosiery Co. v. 103, 107. Morrin, Garrigues Co. v. United Francisco San Association

Industrial offen- far involving more was a case States, 268 U. S. con- case, In cases. the instant than action sive shop,” “open an to force in order suppliers, tractors for certain permits secure builders required to those exchange, refusing permits from a builders’ such mate- open shop. who did not maintain an Some of the permits were States, rials came from other and the so plumbers’ sup- handled as to control materials, such plies, altogether that came from out-of-state sources. Court, commenting general This on the “established facts” of the plan, said:

“Interference with interstate trade was neither de- nor intended. the contrary, sired On the desire and intention was to avoid any interference, and, such *7 to the end, subject this selection of materials to the permit system was to substantially confined Cali- fornia productions. thing sought aimed at and to be attained was not restraint of the interstate sale or shipment of but was a commodities, purely local matter, namely, regulation building of operations within prevent a limited local so as to area, their the domination labor unions. Interstate com- indeed merce, commerce of was description, object not the of ‘for attack, the sake of which the specific several acts and courses conduct were done States, and adopted.’ Company v. United Swift U. S. 397. The facts and circumstances which led accompanied to and the creation of the combination and the complained concert of action which of, briefly apart we have from other forth, set and more direct evidence, ‘ample supply are to a full for Mine conspiracy.’ local motive the United Co., Workers v. Coronado 411.” S., 268 U. at 77.

In language prophetic, this Court further said:

“But the here, delivery plaster of the to the representative or dealer was the closing incident of the interstate movement authority and ended the clause the commerce under government federal of the it, was done What next Constitution. of the arrange- independent new and the result was at 79. S., 268 U. ments.” interfere with to used were so permits the Although other from supplies movement the free this Court said: States, the de- not within interference however, an was,

“It incidental purely but appellants, of the sign court purpose. The a different accomplishment of plumb- upon point the especial stress laid below manu- part were most which for the supplies, ers’ not included state, though outside factured en- prevented system, were permit refusing permit a process tering were under materials, other which purchase was plumber employed who who anyone system, to say, This is plan.’ ‘American observing the not being unable contractor, effect, materials, consequently permit purchase need for would have no job, on with the go unable that the trade the result supplies, with plumbing *8 But diminished. would be extent, to that them, nowas important fact that there the all ignores this manu- freedom of the outside with the interference local contractor ship to or facturer sell take no further to process The went than buy. to therefore, use, and, opportunity the latter’s to away . . .” to purchase. his incentive complained here acts conspiracy “The local upon force a their intended and direct of,, spent essentially local as building is as situation, —for crops, if, mining, manufacturing growing —and resulting a diminution of the commercial demand, interstate trade was curtailed either in generally or specific instances, that was a fortuitous consequence plainly so remote and indirect as it fall cause the reach of outside the Sherman Act.” 268 atS.,U. 80, 82. I it,

As see is all happens here. Interstate commerce has ended. There is no intent purpose restrain interstate commerce. The effect upon commerce is incidental, remote and indirect. It is a restraint spends on a purely itself local incident. If contractors of materials and supplies may combine to an compel open shop by far more drastic as in the measures, Industrial case, Association then surely the workers and contractors may promote combine to a system by closed an agree- ment local its nature.

The of Levering Garrigues Morrin, case & Co. v. which followed the Industrial case, Association point is in In here. case, companies, engaged the building bridges, operated of steel open shops. The unions strike and other techniques sought force closed shops. companies sought injunction an the Sherman complaint Act. The was dismissed for failure to a cause of action. This Court said:

“Accepting allegations of the bill at their full value, it results that the sole aim of conspiracy suppress was to halt or local building operations as a of compelling means the employment of union not for labor, purpose of affecting the sale or transit of materials in interstate commerce. Use of purely materials was matter, and the suppression thereof the.result of the pursuit of a purely local aim. Restraint of interstate commerce *9 was not an object of the conspiracy. Prevention of adopted to a means in no sense use was local exclusively It is this a restraint. such effect effect incidental and fortuitous not and aim, character gives commerce, which interstate upon shipment thereby the If ... conspiracy. re- curtailed, was in interstate steel there- and, remote, and indirect incidental, was sult court, as this acts, the anti-trust not within fore, already had bill, present of the filing prior 107. S., at . . 268 U. held. of a objective its and obtain may

If a union strike commerce, interfering with shop without closed cases in the instant unions Levering case, the as in the employers with the agree and bargain certainly could Leather United See also result. the same to reach Co., 265 S.U. Meisel Trunk Herkert v. & Workers Distilleries, 324 v. United States see Frankfort are cases discussed above 293, 297, where S.U. distinguished. Mandeville heavily upon relied has Government Co., But Sugar 334 U. S. Crystal v. American

Farms recog- case, Distilleries decision, as did the Frankfort here as dis- rely upon I of cases distinct line nized the Page 234. holding therein. from the tinguishable pre- have appellees In it No. plastering contrac- out-of-state discouraged vented area slow- Chicago in the doing business tors from other intimidation, labor, on downs, fines union keep tactics are effective to Assume such means. Chicago in the seeking contracts contractors outstate Chicago Contracting plaster area. if commerce, the con- is not even an contractor outstate outstate, men from bring intend to his tractor did one into another bringing men from State more than York New Toolson play is commerce. baseball *10 Balti- Yankees, Baseball 356; S. Federal Club U. Clubs, League more v. National Baseball of Professional plaster the build- materials to U. interruption flow without site. There ing nothing a local labor situation arises that has to do it. That is all any conspiracy commerce or restrain and therefore in the here, involved sense of that term as used in the Sherman Act is not involved.

I affirm. would